Electronic Mail: From Computer to Courtroom
Digilio, John J., Information Management
AT THE CORE
THIS ARTICLE EXAMINES:
* the legal discovery, admission, and use of electronic mail as evidence
* the role of records and information professionals in the discovery process
* how records and information professionals can prevent the discovery of damaging electronic mail
New forms of records creation are being developed, implemented, and incorporated into information systems regularly. Information that was once solely documented on paper is now created and stored on tapes, disks, and drives. Print copies, once signed, sealed, and delivered, now traverse the office -- and the world -- on cables, lines, and via satellite transmissions.
Although not yet realized in practice, talk of the "paperless office" continues to permeate the rhetoric of business and technology markets. Do these changes trouble records and information managers as much as they seem to fascinate them? Records and information managers should not only be concerned, but they should be preparing for the challenges of new technologies.
One area to which records and information managers should pay special attention is the use of electronic records in the litigious context. In the past, when a corporation or business was a party to litigation, it was often forced to make the contents of its paper recordkeeping system available to the court. Paper documents were seized and the contents scoured for information relevant to the complaint in the action. If a document was of use to the court, it was often admitted into evidence.
This procedure is still the standard for procuring documentary evidence from corporations. However, with the growing reliance of the business world on electronic records and information, a new ingredient has been added to the mix. How does one seize and make use of potential evidence that is intangible or "virtual"? The same technological advances making electronic records possible are also providing the means of making use of those records in court. A nightmare of electronic incrimination may lay in ambush for the unsuspecting, unprepared records and information management professional.
E-mail: How America Does Business
Most large companies now have their own custom-designed and internally managed computer networks (Goldstein 1994), and most of the staff is online to some extent. In many corporations employees use e-mail as their primary mode of intraoffice communication (CCQ 1995). E-mail is an attractive mode of communication because of the many benefits it has to offer:
* It is easy to use and manage.
* It requires little preparation.
* It makes the message-delivery process nearly instantaneous.
* It allows work to be done asynchronously.
E-mail has virtually revolutionized the way humans communicate, both at work and at home. Its popularity will continue to grow.
Yet, as with almost anything designed to make life and labor easier, e-mail has inherent in its nature the potential for abuse and disaster. As such, it must be used judiciously. In the context of the business and legal worlds, records and information professionals and those they serve should be aware of at least one major pitfall: If litigation occurs, a company's adversary may be able to obtain those bits and bytes that flow through its network and reside in its systems. Through the process of pretrial discovery, parties may be able to get access to their opponents' electronic records (CCQ 1995). One may not be able to see them or touch them in raw form, yet be compelled to produce them for the court.
The National Archives and Records Administration (NARA) defines e-mail as "a document created or received on an electronic mail system, including brief notes, more formal or substantive narrative documents, and any attachments that may be transmitted with the message." NARA defines an electronic mail system as just that: A system used to create, receive, and transmit messages.(1) Other systems, such as those used solely for file transfer or data collection, are not included in the definition. NARA's definition is also certainly not the only one. The only requirement is that e-mail be transmitted as or with a message over a system designed for such transmission.
What seems to make e-mail so popular is its simple and seemingly transitory nature. People will often write things in e-mail that they would never consider putting into other forms of writing. In fact, research has shown that people tend to think of electronic communication as more of a conversation than a correspondence. As one observer put it, "people do not `write' to their friends on the Internet; they talk" (Giese 2001). Words on paper are permanent and can easily serve as physical evidence of what was said. E-mail, however, seems to have all the ease and intangible nature of oral communication without the physical finality of writing. As yet another writer points out, e-mail essentially blurs the lines between the written and oral worlds (CCQ 1995). People with a tendency to replace telephone calls with e-mail messages have a tendency to be less careful with what they are willing to type. They use e-mail as if they were speaking rather than writing.
The reality of this supposed transitory nature is simply that e-mail is not as ephemeral as it seems. E-mail is potentially more permanent than a telephone call or even a written memorandum. Paper documents can be gathered up and destroyed easily and with near permanence. With an e-mail message, depending on the number of recipients and whether the author or system retains a copy, the problem of multiple copies digitally "lying around" is almost always present. One cannot see these duplicates as easily as they might see a written memo. If those electronic messages are not destroyed, however, and the company has a policy of backing up its computers' data, then those copies will only multiply (CCQ 1995). Ironically, the backups that are considered a matter of company security can actually become a matter of corporate liability.
Some companies store all significant files on a central system as well as allow users to retain files on their personal computers (Frisman 1995). The handling of those copies is a major concern. Who has access to destroy them? Where do the backups go? How long are they maintained? Records and information management professionals clearly have their hands full in assessing work processes and communication flows in order to understand where these e-mail messages are to be stored.
The very idea that an e-mail message is easily destroyed is problematic and erroneous. To the average electronic mail user, destroying an e-mail message means "deleting" it. This perception is a dangerous misunderstanding of the technology. The most deceptive parts of any computer network may very well be the "delete" keys. When an e-mail message is just deleted, it is not erased (Jacobsen 1995). Deleting only signals the computer that the space required to store the message is no longer needed. The space is so marked, but the data that occupies it continues to exist until the computer overwrites it with new data. In this "deleted" form, e-mail is still discoverable, albeit through an involved and expensive process (Frisman 1995).
Pressing the "delete" key can be like playing technological Russian roulette. The most classic example of the gun going off, in our time, occurred during the infamous Iran-Contra scandal of the Reagan era. National Security Advisor John Poindexter spent more than 15 hours deleting more than 5,000 sensitive e-mail messages only to learn that backups had been made and that anything that had been deleted but not overwritten might be recovered (Wallace 1997). Called the "PROFS" case in honor of the IBM e-mail system then employed, Armstrong v. Executive Office of the President(2) is discussed later.
Another dangerous misunderstanding in the corporate context is the degree of privacy involved in the e-mail process. Users tend to use e-mail freely under the misconception that what they are sending and receiving is actually private (Jacobsen 1995). This perception, in most instances, is clearly not the case. The Electronic Communications Privacy Act of 1986 provides for the ability of an employer to monitor the e-mail transmissions of employees. Employers can monitor an employee's e-mail when 1) monitoring is justified by the employer's legitimate business interest or 2) when the subject matter relates to that interest. Anything the employer allows to exist is discoverable. Electronic mail receives even less privacy protection than telephone calls simply because it can be easily stored (Frisman 1995).
Privacy becomes a paramount concern when one considers exactly what types of information can be gleaned from a simple e-mail message. Somewhere within the bits of data surrounding the message, searchers can find information on the sender and recipients, dates and times of sending and receipt, and even on retrieval of the message (Dreyer 1996). These bits of information are called "metadata" (Myburgh 1998). Some users call it the "data about that data" because it helps identify the electronic document. In court, this type of information can be integral to a case. Courts have used the need for it to rationalize and legitimatize use of electronic mail as evidence at trial.
An important fact is that the potential for liability based on an electronic message increases as corporate use of e-mail increases. Anyone who is unaware of the legal implications that may jeopardize electronic mail use may be caught off guard by a random and damaging message. The greater its proliferation in the business world, the more attractive e-mail becomes to law enforcement, legislators, and attorneys (Dreyer 1996).
In recent years, e-mail has been used in cases involving child pornographers, hate groups, cellular telephone fraud, and even sexual assault and murder.(3) The full extent of its uses in legislation and courts has yet to be fully explored. What is important is that e-mail is being used as evidence successfully.
Even the federal government has been put on notice regarding its use of electronic mail. In the case of Armstrong v. Executive Office of the President, a federal circuit court in the District of Columbia ruled that e-mail "automatically creates a complete record" and that as such, the Federal Records Act (FRA) prevents any agency of the government from "discarding it by flat." In the case, a number of federal agencies appealed the decision of a lower court that held them in violation of the FRA. The agencies had routinely been instructing employees to print and manage only hard copies of electronic communications. The court held that the FRA was promulgated to assure accurate and complete documentation of agency business. The justices feared that the printouts might omit integral pieces of information such as senders, recipients, and dates.(4) Thus the court imposed a statutory obligation upon federal agencies to manage electronic records carefully and within FRA guidelines.
The discovery of e-mail for use as evidence is a trend that has only recently begun taking root. The potential for liability exists for anyone carelessly using electronic mail, whether at home or on the job. The processes by which e-mail is "discovered" are expensive and complex, but they are becoming more readily available. E-mail discovery is a lucrative professional field. Companies have been formed to ferret out potentially useful and damaging electronic tidbits. They have seen the future and are answering the call (Lavelle 1994). The question is whether records and information management professionals in the business and private sectors are also ready to rise to the challenge.
It Begins with Discovery
The Federal Rules of Civil Procedure are the general guide that governs the discovery process. Applicable directly to the federal court system, some form of these procedural rules, or rules very similar to them, have been adopted in all states. Generally, the Federal Rules do not treat electronic records any differently than paper records (Frisman 1995). Surprisingly, the Federal Rules do not explicitly provide guidance for the discovery of electronic mail (Dreyer 1996). Rule 34, however, which directly governs the production of documents in discovery, provides for the production of "data compilations." Some lawyers have argued that "data compilations" include documentary information stored electronically on tape or disk.
Further, the Federal Rules of Civil Procedure not only provide for the discovery of evidence, but they also provide federal courts with the ability to enforce discovery requests and to impose penalties on those failing to comply. Provided it failed to do so when the request was originally made, Rule 37 allows a federal court to compel a party to disclose its electronic data. If the party still fails to comply with the discovery request, Rule 37 gives the court some teeth. When an order to compel discovery goes unheeded, the court is able to impose harsh sanctions on the party in noncompliance. If a real risk of the raw data being lost is present, the court is free to go so far as to order a company to turn over its entire computer network to the discovery process (Titunik 1994).
The potential for chaos and economic hardship as a result of this sanction should be obvious. Still, companies are often caught off guard and red-faced. An article about the Electronic Communications Privacy Act describes one such debacle (Jessen and Shear 1996). The authors, who were called in to scrutinize the supposedly "purged" e-mail of a company involved in litigation, managed to retrieve more than 750,000 messages. They also managed to search those messages efficiently and turn up some damaging evidence, much to the company's chagrin and eventual detriment.
Under the Rules, a specific request for e-mail discovery does not have to be made. Federal Rule 26 requires a party to disclose before discovery all documents, and thus data compilations, that are relevant to the facts alleged in the pleadings of a case that has been recently commenced. Given this complication, parties need to be aware very early of what issues are in dispute and what, if anything, relevant they may have scattered about in their organizations' "dataland."
The Rules of Civil Procedure are not completely without recourse for the party against whom a request for such discovery is made, however. As noted earlier, electronic discovery can be a very expensive process to undertake and complete. Rule 26 allows a party to object to a discovery request when its costs outweigh its benefits. This standard is not easy to meet; in the event of such an objection, the court considers the cost and weighs it against the need for the information, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the proposed discovery in solving them. Only if the cost outweighs the benefits will the discovery request be denied. In a time when more records are being stored digitally, the need for the electronic records to be produced is often high. Because the parties are typically major corporations, their resources and the cost in controversy are usually high. Today, a request for electronic discovery is very unlikely to be turned away.
The type of discovery that involves sifting through the electronically stored data of a party in controversy has been called "paperless discovery" (Middleton 1993). One resource for attorneys, The Manual of Complex Litigation, goes so far as to recommend that courts inquire at the outset of litigation as to whether any computerized data of possible relevance may exist.
Interestingly, however, history shows that lawyers have long been reluctant to pursue electronic records. In fact, electronic records were routinely ignored for quite some time. One can reasonably speculate that this reluctance may have been caused by the high cost involved in the discovery of electronic records or even in the lack of attorneys' knowledge of electronic records systems. Some lawyers have even hypothesized that a "gentlemen's agreement" against the discovery of electronic records existed, perhaps to avoid mutual expenses and hardships (Jacobsen 1995). Whatever the reasons, as more and more individuals and businesses go digital, lawyers in the Information Age simply cannot afford to overlook computer records.
Records and information management professionals should be familiar with one federal case in particular regarding discovery of electronic records and e-mail. An interesting precedent was set in the case of Crown Life Insurance Company v. Craig.(5) In this dispute between insurance companies, one of the parties, Crown Life, was severely sanctioned by a lower court for failing to produce "raw data." One of its own employees had testified as to the existence of a database containing important policy information. Crown Life's opponents argued that the documents furnished by the company were insufficient and that they needed access to the raw data. Crown Life asserted that the data was not a document for discovery as it had never been put into hard copy and that the discovery request did not specifically ask for the data. Crown Life further argued that, as raw data, this information was inaccessible.
The court, taking a historical approach, held that the "notes to the 1970 amendment of Federal Rule of Civil Procedure 34 make clear that computer data is included in Rule 34's description of documents." Further, the justices refused to relieve the insurance company of its duty to produce that data, stating that the rule actually anticipated the problem of access. Quoting again from the notes to Rule 34, the court said,
It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form ...
In this situation, the data in question proved to be critical to the case. The court thus went so far as to hold that the request for documents included any "underlying data" used to support or refute the documents and that the party had a duty to make that data accessible.
Admissibility: The Big Step
Discovery is the proverbial "tip of the iceberg" in the process of dragging e-mail from the computer to the courtroom. However, the law does not guarantee that anything discoverable will be admissible in a court of law (Dreyer 1996). Potential evidence that fails to be admitted into court is without value and can be a real loss if the discovery was costly. Case history, however, paints a brighter picture. E-mail has been held admissible in most cases, especially in the area of employment law. E-mail has been in evidence in cases dealing with such issues as sexual harassment, wrongful discharge, and employment discrimination. It has also found its way into a number of criminal cases as well. As society's reliance on electronic communication grows, so will the place of e-mail in the courtroom.
The Federal Rules of Evidence govern what is and is not admissible in a federal court of law. Promulgated by the federal government in 1975, more than 30 states have since adopted their own similar evidentiary codes. The Federal Rules and their state counterparts set the parameters that govern what is admitted before a court and in what capacity it may be used. Whenever an evidentiary question arises, proper rules must be applied to the proper level of court. In many instances, a state rule may be more or less strict than its federal counterpart.
Under the Federal Rules of Evidence, a number of initial concerns must be considered before a record can be admitted as evidence. The first of these issues is relevance, as governed by Federal Rules of Evidence 401 and 402. Anything sought to be admitted into court as evidence must be relevant to the issues before the court. This standard is not difficult to meet. It may even seem obvious. Nonetheless, relevance is not always a given; therefore treatment of the topic requires mention.
Another immediate concern when trying to admit e-mail into evidence is authenticity. It is kin to what records professionals might call "provenance." The Federal Rules of Evidence require that all documents be authenticated prior to admission to the court (Traynor 1994). Generally, authentication is accomplished either directly by linking a specific person to the writing or in a more circumstantial and indirect way. This linking may seem to be an obvious requirement, but in the case of e-mail, it is crucial. Records professionals would call this link the "chain of custody" and would recognize its importance. The possibility of e-mail forgery, for example, is a definite problem in today's high-tech world. Because e-mail is easily manipulated, reliability is a key factor in determining authenticity.
To many, the reliability of computer records, such as e-mail, is inherently suspect due to its natural volatility (Perrit 1992). In the case of e-mail or other electronic records, a court will judge the reliability of the system, programs, data entry techniques, storage means, and security methods. A demonstration of the system will certainly be in order, and the results will need to be proven accurate (Traynor 1994). Accuracy verification is often accomplished through the use of experts such as records and information professionals. They are not only good for demonstrating the technical soundness of an information system but also in establishing the necessary chain of custody.
Another major concern in the admissibility of electronic mail is what is popularly termed the "Best Evidence Rule." Under the Federal Rules of Evidence, production of original documents is definitely preferred. Although original documents are considered the most reliable, uncontested duplicates will also meet this need. Thus far, the Best Evidence Rule has not been a bar to the admissibility of e-mail into evidence. In fact, courts have held that when data is stored in a computer, a printout or other readable output that accurately reflects the nature of the data stored will stand as an original.
The greatest threat to the admissibility of electronic mail into evidence is the hearsay challenge. Federal Rule of Evidence 801 defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The same rule clears the way for both oral and written assertions. Rule 802 is known as the actual "Hearsay Rule," and it bars from evidence all hearsay for which no exception is provided.
All e-mail faces a preliminary challenge as being hearsay. By its very nature, electronic mail is a statement made out of court. The only real functional hurdle that must be proven is that it is being offered to assert the truth of the matter before the court. If the hearsay challenge cannot successfully be overcome, the evidence is lost. Fortunately, the Federal Rules of Evidence provide the party wishing to have the e-mail admitted with several possibilities to meet that challenge.
Federal Rule of Evidence 801 provides a number of possibilities for quashing the ban on hearsay. These situations are explicitly listed as not being hearsay, though they may certainly fit the definition. The most common exclusion in hearsay cases is the "admission by party opponent." If the e-mail message was sent by the opponent of the party that seeks to have it admitted into evidence and it attests to the matter charged, then it is excluded from being hearsay and is entered before the court. Admissions by nonparties or even the proponent do not qualify. This type of situation is convenient but rare.
Rule 803 further provides a laundry list of 24 exceptions to the rule against hearsay. Evidence that is hearsay can still be admitted into the courts, provided one of the hearsay exceptions applies. Certainly all 24 exceptions are not applicable to the admission of electronic mail. At least two, however, stand out as likely candidates to defeat a hearsay challenge.
The first of these exceptions is the "Public Records Exception." Under Federal Rule of Evidence 803(8), an exception to the Hearsay Rule will be made if the statement is a public record or report. To qualify, the record must 1) set forth the actions of the office or 2) detail matters observed pursuant to the duty of the office or 3) the record is being used in a civil proceeding or against the government in a criminal case. It is not a very broad exception, but its direct applicability to those working in government positions makes it a very important one. Already cases are before the courts that seek disclosure of electronic information on the personal computers of government employees. The public seems to have taken a sudden "taxpayers' interest" in what government employees do on their computers while on the clock. Government accountability is elevated to a new and higher level.
The primary exception to the rule prohibiting hearsay before the court, and the focus here, is the Business Records Exception detailed in Federal Rule of Evidence 803(6). This rule makes a hearsay exception provided that the record in question
* was kept in the course of regularly conducted business
* is of a type that is regularly kept
* is made by, or from information by, one with knowledge of the source
* is made contemporaneously
* is accompanied by foundational testimony
Although the standard may be difficult, it is not hard to meet.
The first requirement of Rule 803(6) is that the record be made in the course of regular business. A record created in-house and in the normal course of business is thought to be inherently more trustworthy than one made outside the business. Trustworthiness and reliability are, of course, crucial to the admissibility of evidence. Personal records or those made outside the business are suspect and will not fall within the Business Records Exception.
Second, the record must be made regularly as part of the business practice. Again, the focus here is trustworthiness and reliability. A record made regularly in the practice of the business has a certain inherent trustworthiness that records randomly generated lack. No clear guideline on what constitutes "regular practice" is available. This ambiguity leaves practical application to the discretion of court interpretation.
The third requirement of the Business Records Exception is that the record must be made by someone with knowledge of the source or by someone to whom the source transmitted that knowledge. Again, firsthand knowledge is deemed trustworthy and reliable. As a result, so long as some indication of first-hand knowledge exists, courts have been known to construe this prong of the test very liberally.
Fourth, contemporaneous creation is required. The record must have been created at or near the time the information was acquired. This stricture too lacks firm definition and is open to court interpretation. Generally, however, it is not an obstacle, particularly because e-mail messages explicitly give a date and time. One should never forget that this metadata can be checked for reliability and authenticity.
The process becomes complex with the fifth, and final, requirement of Rule 803(6): foundational testimony. Here again, information professionals can appreciate and maintain the importance of the chain of custody and provenance. In a court of law, the custodian of the information or some other similarly qualified witness must detail the recordkeeping practices of the business. This information is important in establishing the trustworthiness of the record and the trustworthiness of the system that produced it.
The person called upon to furnish this testimony need not be the person who created the record or even someone with firsthand knowledge of the content. Simply good general knowledge of the company's recordkeeping practices is all that is required. Records and information management professionals are a prime candidate for this position because they are major participants in records inventories and in the maintenance of the records. In fact, many such professionals have been subpoenaed to testify on these issues.
Provided that the five prongs of the test are satisfied, the electronic mail offered as a business record should be admissible into evidence at court. The word "should" applies because here again is found another interesting omission in the rules. No law or precedent extends this exclusionary rule to electronic mail. Courts have, however, made provisions for other computer documents. In fact, courts have generally held that the requirements of Rule 803(6) are satisfied when a computerized method of recordkeeping is employed.
A look at two seminal cases on this point is useful. The first case is United States v. Catabran.(6) This litigation was the result of a bankruptcy proceeding gone awry. At the trial level, the appellant was found guilty of concealing assets during the bankruptcy proceeding and then destroying or concealing the records. Printouts from a computerized ledger were used against him at trial. Following his conviction, he argued on appeal that the admission of these printouts was error on behalf of the trial court. The justices on this appeal did not agree. They held that the fact that the records were created on a computer was immaterial. The important consideration was whether the standards of a business record were satisfied. The Business Records Exception, they reasoned, allowed for the admission of a data compilation in any form provided those strictures were met.
In this case, bookkeepers that had worked for the appellant testified regarding the ledgers, their trustworthiness, and their use in the regular course of business. The court found this testimony more than sufficient to meet the business records exception. The appellant tried to argue that possible inaccuracies were in the data entry and the program. Still, the court was unswayed in light of the testimony of those who created and maintained the records.
Another case involving a bankruptcy is Rosenberg v. Collins.(7) Here, a party was trying to prove the insolvency of the appellant at a stated point in time. They won admission into evidence of a number of computer records, information without which they would not have had a case. The appellant argued unsuccessfully that these records were not properly authenticated as business records. Once again the court in this case disagreed. The justices reiterated the rule that computer data compilations can and should be treated as other business records, provided the test for the Business Records Exception was satisfied. Here, the records were prepared by a third party, not one of the appellant's associates. Still, the court found that this third party was capable of producing these records, had done so before litigation was foreseeable, and was a disinterested bystander. The requirements were met, and the court found the evidence properly admitted. The important legacy of this case is that the court reasoned that any person in a position to attest to the authenticity of the records in question could do so. Relying on precedent, the court said that this person need not have personally made the records, maintained them, or even be able to attest to their accuracy. Authenticity and someone to vouch for it was the paramount consideration.
Though cases such as these have extended the exception to computer-based data, no federal court has yet explicitly applied it to e-mail (Dreyer 1996). In a legal system founded upon the doctrine of stare decisis (i.e., letting things decided stand undisturbed) and the power of precedent, this failure to include e-mail is an important fact. In at least one major case, a court has flatly rejected the application of the Business Records Exception to e-mail.
In the 1994 case of Monotype Corp. v. International Typeface Corp., the United States Court of Appeals for the Ninth Circuit refused the admission of e-mail evidence under the Business Records Exception.(8) This case concerned a controversy over whether computer fonts, created by an American company, had been illegally copied and used by a British corporation in making a deal with Microsoft Corp. The Americans sought to offer into evidence an electronic mail message that discussed font legitimacy problems as expressed by an employee of the British company. The trial court refused to allow the evidence, finding that its prejudicial nature outweighed its relevant value.
On appeal, the American corporation argued that the e-mail in question should have been admitted as a business record. The text of the message was a warning from a third party retained by Microsoft to assist in the deal to an employee at Microsoft, who then sent a similar message of concern to his superior. The appeals court did not buy into the argument for including this evidence. In distinguishing itself from the Catabran decision, where computer printouts were involved, the court reasoned:
The difference between Catabran and the present case is that e-mail is far less of a systematic business activity than a monthly inventory printout. E-mail is an ongoing electronic message and retrieval system whereas an electronic inventory recording system is a regular, systematic function of a bookkeeper prepared in the course of business.
However, the fact remains that with the widespread and common use of e-mail within the corporate sector today, if an e-mail message meets the requirements of the Business Records Exception -- or any of the others, for that matter -- it will likely be admitted as evidence into a court of law. Those bits and bytes that once sat idle on an employee's personal computer or in the company's records storage system may very well come back to haunt the corporation and/or the individuals involved. The consequences can be frightening. Such evidence is incriminating and damaging and should be anticipated with adequate preparation.
The Role of Records and Information Managers in Discovery
In any situation involving a company's records keeping system, records and information management professionals should exercise a vested interest into what is being done or implemented. The problem of how a business should prepare for and handle electronic discovery is no exception. In assessing the vulnerability of and best way to protect a company's electronic records, records and information management professionals bring invaluable insight and skill to the table. A number of possibilities are at his or her disposal.
The first of these possibilities is a matter of policy: Records and information management professionals should involve themselves in the formulation of policies regarding the creation and maintenance of electronic records throughout their life cycle. In the context of this article, a strict policy on the use of company e-mail is in order. Several elements may be included in a good e-mail policy.
Privacy should be discussed. A clear e-mail policy will tell employees and users of the system what degree of privacy, if any, can be expected (Frisman 1995). Employees should be warned, if the policy warrants, that putting anything into an e-mail message that they would not put into an actual letter or memo is unwise. Employees should also be informed that their e-mail messages are being recorded (CCQ 1995).
Secondly, e-mail messages that are retained should be properly organized. Titles that help them to be categorized, identified, and retrieved should be used. This procedure will save time and money if the need to access the files arises later. Time, money, and compliance can be critical values in the pinch of litigation.
In general, a good records retention policy is critical. It should provide for efficient retrieval (both an issue of policy and design). Again, this practice saves time and money. It should not invite discovery beyond relevance. Poor organization can result in needless searching, and that process can be detrimental to recordkeeping systems. Only necessary documents should be preserved. Unnecessary records that fall though the cracks can be kept to a minimum. Measures to prevent abuse should be articulated so that the policy will be very strictly enforced.
Even the best records retention policy provides no guarantee that a company will be safe from the pangs of electronic discovery. Once a company is on notice or knows that it is a potential party to litigation, an affirmative duty to take reasonable steps to protect any potentially relevant information arises. Regardless of retention or destruction policies, the company must comply or face sanctions.
Still, many benefits to effective, forward-looking records management practices and policies, such as reduced expenses in litigation, remain (Jessen 1997). If a corporation is organized and prepared in advance, the cost, time, and methods needed to search through electronic records will be minimized. A well-designed system that will provide a tactical advantage of strength and confidence is important. Planning ahead will allow for ease in meeting deadlines and will project an air of competency. Early preparedness also serves as protection from surprise discovery tactics that can cause great hardship and be costly. Effective records management practices for e-mail and other electronic records are simply the best and safest practices.
Records and information professionals would do well to prepare for the new issues that a heavy reliance on electronic records systems will bring. Particularly, they should ponder and prepare for the coming liabilities and their prevention. A well-prepared records and information manager and a forward-looking records management system will best be able to weather the technological intricacies of electronic discovery and its ensuing litigation. The unwary professional may become lost in a slow, costly, and frustrating process.
(1.) 36 CFR [sections]1234.2.
(2.) 1 F.3d 1274 (D.C. Cir. 1993). See also Wallace, David A. "Electronic Records Management Defined by Court Case and Policy." The Information Management Journal 35, no. 1 (January 2001): 4.
(3.) See People v. Jovanovic, 676 N.Y.S.2d 392 (Sup. Ct. N.Y. 1997) (Oliver Jovanovic was convicted of kidnapping and sexual assault of a woman he met in a chat room and with whom he corresponded via e-mail); Froistad Trial (Larry Froistad was convicted for murder and child pornography after confessing to the crimes in an e-mail message).
(4.) 1 F.3d 1274 (D.C. Cir. 1993).
(5.) 995 F.2d 1376 (7th Cir. 1993).
(6.) 836 F.2d 453 (9th Cir. 1988).
(7.) 624 F.2d 659 (5th Cir. 1980).
(8.) 43 F.3d 443 (9th Cir. 1994).
Dreyer, Anthony J. "When the Postman Beeps Twice: The Admissibility of Electronic Mail Under the Business Records Exception of the Federal Rules of Evidence." Fordham Law Review 64, no. 5 (April 1996).
Frisman, Paul. "E-mail: Dial `E' for `Evidence.'" New Jersey Law Journal 142, no. 13 (25 December 1995).
Giese, Mark. "Self Without Body: Textual Self-Representation in an Electronic Community." First Monday. Available at www.firstmonday.dk/issues/issue3_4/giese/index.html (accessed 10 March 2001).
Goldstein, Matthew. "Electronic Mail, Computer Messages Present Knotty Issues of Discovery." New York Law Journal 211, no. 26 (8 February 1994).
Jacobsen, David C. et al. "Peril of the E-mail Trail: Implementation of an Electronic Information Retention Plan Can Prevent a Disastrous Disclosure." National Law Journal 17, no. 20 (16 January 1995).
Jessen, John H. and Kenneth R. Shear. "The Electronic Communications Privacy Act: Use of a System Log-on Screen to Minimize Liability." Proceedings: 1996 Managing Electronic Records Conference Held in Chicago, Illinois.
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Editor's Note: See related article, "Electronic Records Management Defined by Court Case and Policy," in the January issue of The Information Management Journal.
ABOUT THE AUTHOR: John J. DiGilio, J.D., is the Legal and Business Research Librarian and Instructor at the law firm of Kirkpatrick and Lockhart, LLP, in Pittsburgh, Pennsylvania. He has three years' experience in the information management field, specializing in legal information and corporate intelligence. DiGilio is a member of the American Association of Law Libraries (AALL) and the Special Libraries Association (SLA). He is chair of SLA's Legal Division Diversity Committee and a member of AALL's Committee on Diversity. He has a master's degree in library and information science and received a Juris Doctor from Pepperdine University School of Law. The author may be reached at firstname.lastname@example.org.…
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Publication information: Article title: Electronic Mail: From Computer to Courtroom. Contributors: Digilio, John J. - Author. Magazine title: Information Management. Volume: 35. Issue: 2 Publication date: April 2001. Page number: 32. © 2009 Association of Records Managers & Administrators (ARMA). COPYRIGHT 2001 Gale Group.